3. Stop mercury pollution. State legislatures can keep mercury out of the air and water by banning or limiting the sale of products containing mercury, requiring that mercury-containing equipment be recycled, or by insisting that local power plants reduce their mercury emissions.

Why mercury pollution is a federalism issue:
Significance:
Mercury is a toxin that affects brain functioning. Adults with mercury poisoning can have impaired vision, hearing, speech, and ability to walk. High mercury exposure may contribute to heart attacks, as well. Children or developing fetuses exposed to too much mercury, whether in their own diet, in breastmilk, or through what their mothers eat while pregnant, are at risk of developmental delays and even brain damage. The National Institutes of Health estimates that the IQ loss from children's mercury exposure costs the U.S. $8.7 billion annually because of lost productivity.

Mercury enters the air when coal is burned at power plants and when mercury-containing products are burned in municipal waste incinerators. It then settles into oceans, rivers, lakes, and streams, where it enters the food chain. People eating fish from contaminated waterways raise their exposure to mercury. More than 40 states have issued advisories warning people that fish in particular rivers or streams have unsafe mercury levels. Recent studies have also shown that mercury may also accumulate in dry forest areas, and is present in birds that never eat fish, suggesting that the toxin is increasingly prevalent in our environment.

State and local role:
State and local governments are on the front lines of mercury pollution prevention. Duluth, Minnesota, banned the sale of mercury-containing medical thermometers in March, 2000, before any other municipality or state in the country. Massachusetts has a "Zero Mercury Strategy" designed to eliminate almost all human-caused releases of mercury into the atmosphere. The strategy includes laws limiting mercury emissions from power plants, and programs for recycling products that contain mercury and educating the public about the need to recycle, rather than throw away, these products.

Local and state governments already ban or limit the sale of dangerous materials, such as fireworks, and can similarly ban or limit the sale of mercury-containing products, as California, Connecticut, and other states have done. (Click on the state's name to see either the text of the state's law or other information about the law.)

State and local governments regulate waste collection, recycling, disposal and incineration, and can try to keep mercury out of trash burners that way. Maine, New Jersey, Arkansas and Illinois require that mercury switches contained in cars be recycled.

Connecticut, New Jersey, and Wisconsin have used state clean air acts or other regulations to mandate mercury emissions cuts from power plants. Connecticut's law is available online here, and Wisconsin's law and background information are available here. (Wisconsin's law will be superceded by the federal mercury regulations, when they go into effect).

The Conference of New England Governors and Eastern Canadian Premieres has adopted a regional mercury reduction plan, available here.

Federal role:
Preventing mercury pollution requires action from both state and federal governments. Mercury emissions from power plants, for example, drift across state (and even national) borders, meaning that state action by itself will not keep mercury out of the air and water in some states--national limits on mercury emissions are required. But states might need or want to set stricter local emissions standards to protect public health, and states are allowed to create these higher standards under EPA's proposed mercury rule. The EPA rule also creates a controversial cap and trade system to limit mercury emissions, which allows some plants to continue to emit relatively high levels of the pollutant; states have the option of forbidding particular local plants from participating in the cap and trade system.

Several states, led by New Jersey and including California, Connecticut, Maine, Massachusetts, New Hampshire, New Mexico, New York, Pennsylvania, Vermont, and Wisconsin have sued the EPA over the proposed mercury rule, saying that its emission limits are insufficiently tough, could create "hotspots" with high concentrations of mercury, and will not protect their constituents from mercury emissions that originate in other states. A Stateline.org article about the suit is available here.

Critical resources:
Two major groups of state and local air quality officials, STAPPA and ALAPCO, have released a model mercury reduction rule, available here, which would yield greater mercury reductions in a shorter amount of time than the proposed EPA rule. A press release on the model rules is available here and a comparison of the STAPPA/ALAPCO plan and the EPA plan is available here.

Model mercury switch recycling legislation from the Partnership for Mercury Free Vehicles is available here. Other good sources for mercury reduction legislation are the Mercury Policy Project, the Center for Policy Alternatives, which has this background brief on mercury, and the State Environmental Resource Center, which has this issues package on mercury.

The National Conference of State Legislatures website has an air quality legislation database which contains mercury-related legislation from the current and immediate past state legislative sessions. The National Caucus of Environmental Legislators also tracks mercury reduction laws.

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If you know of other state and local governments pursuing similar policies, or different policies to reach the same goal, please let us know by sending an email to redefiningfederalism@communityrights.org.

To read about how federalism concerns are playing out in the debate about policy responses to global warming, please visit our blog, www.warminglaw.com

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